2
Most Common Appeal Types Asylum, withholding, CAT Criminal issues Cancellation of removal – LPR or non-LPR Termination of removal proceedings IJ denial of motions – such as motion to reopen or motion to change venue

3
Preparing For Possible Appeal PRACTICE POINTER What to Do Before the Immigration Judge: Make and preserve your Record: objections, requests for continuances, interpreter issues, request to supplement the record Memorialize off-the-record agreements, restrictions and rulings in the record Give a solid Closing Argument Take near-verbatim notes of Oral Decisions Do not waive appeal unless decision fully favorable

4
PRACTICE POINTER – SUBPOENAS- LAYING FOUNDATION Affirmatively ask IJ to enforce subpoena 8 CFR § 1003.35(b)(6) requires the IJ to enforce their subpoena (emphasis added): (6) Invoking aid of court. If a witness neglects or refuses to appear and testify as directed by the subpoena served upon him or her in accordance with the provisions of this section, the Immigration Judge issuing the subpoena shall request the United States Attorney for the district in which the subpoena was issued to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify and to produce the books, papers or documents designated in the subpoena.

5
Timing (Received at BIA within 30 days of service of decision whether by hand or mail. No Mailbox Rule.) Notice of Appeal (EOIR-26) Remember to Request Oral Argument (can be waived later) Notice of Appearance (EOIR-27) – Required even if you were the attorney before the IJ Filing Fee ($110 payable to U.S. Dept. of Justice) Or Fee Waiver (EOIR – 26A) Proof of Service on all forms All forms available at www.justice.gov/eoirwww.justice.gov/eoir How do you file an appeal before the BIA?

6
What happens next? BIA issues Receipt File FOIA to the BIA for the full record if: a. Case has a very large record –paginated record is easier to work with and search electronically; or b. Case came from another attorney – ensures you have the full record: every exhibit, motion, filing, etc… BIA will send Transcript and IJ Decision with Briefing Schedule. Exception: appealing denial of Motion to Reopen - listen to tapes at court for MTR appeals; FOIA; you can cite to hearing recording (BIA Practice Manual 4.6). In brief, make motion for tapes to be transcribed.

8
Avoid Affirmance Without Opinion 8 C.F.R. § 1003.1(e)(4)(ii):a decision will be affirmed without opinion if: IJ decision was correct; error was harmless; issues squarely controlled by case law/statute; or Factual/legal issues not “substantial” (no definition in 8 C.F.R.) Less of an issue than in past. Strategies to avoid summary affirmance: Argue that issues not squarely controlled by existing precedent Argue errors made not harmless Argue that issues are substantial and novel Or argue that remand is necessary to require further fact- finding under the proper legal standard

9
MOTIONS IN YOUR BIA BRIEF -1 PRACTICE POINTER OPPOSITION TO SUMMARY AFFIRMANCE MOTION THAT DHS WILL INEVITABLY MAKE MOTION FOR ORAL ARGUMENT MOTION TO REMAND IF ALIEN QUALIFIES FOR NEW RELIEF, EG USC BABY BORN AND NOW QUALIFIES FOR CANCELLATION MOTION TO REMAND IF CLIENT GETS TRAVEL DOCUMENTS AND VOLUNTARY DEPARTURE WAS DENIED DUE TO LACK OF TRAVEL DOCS.

11
Getting Three-Member Panel Review Single Judge Review permitted unless appeal qualifies for 3- member review under 8 C.F.R. §1003.1(e)(6) MOVE FOR PANEL REVIEW AT BEGINNING OF BRIEF Identify ALL applicable reasons for 3 member review: To settle inconsistencies among the rulings of different immigration judges; To establish a precedent construing the meaning of laws, regulations, or procedures; To review decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents; To resolve a case or controversy of major national import; To review a clearly erroneous factual determination by an immigration judge; or To reverse the decision of an immigration judge or the Service, other than a reversal under Section 1003.1(e)(5). Remember to argue against 3 Member Review if you won in Immigration Court

13
GETTING READY TO WRITE-2 PRACTICE POINTER LOOK IN THE RECORD OF EXHIBITS FOR EXCERPTS THAT SUPPORT YOUR POINTS OR REBUT IJ’S FINDINGS OF LAW AND FACTS MAKE A LIST OF THE EXCERPTS AND CITATIONS TO RECORD OUTLINE YOUR POINTS AFTER YOU WRITE UP POINTS, MAKE A SUMMARY OF ARGUMENT AND PUT IT AT FRONT OF BRIEF FOR BIA, YOU CAN USE LISTS IN ADDITION TO STRAIGHT PROSE.

14
GETTING READY TO WRITE-2 PRACTICE POINTER DON’T THROW AWAY ANY ISSUES - SOMETIMES THE BIA “HANGS THEIR HAT” ON AN ISSUE THAT YOU MAY HAVE CONSIDERED MINOR. STAY ABREAST OF NEW LAW IN AND OUT OF YOUR CIRCUIT [BENDERS IMMIGRATION DAILY IS FREE!]. ASK FOR REMAND BASED ON NEW LAW IF APPLICABLE. IF OUTSIDE CIRCUIT NEW LAW IS FAVORABLE, WRITE MOTION TO REMAND AND EXPLAIN WHY THE REASONING OF THAT OPINION IS SOUND.

15
Tips for Brief Writing Understand BIA Structure and Operations Staff Attorneys do first level review and a draft decision Case loads are heavy – Make it easy to understand your issues/arguments Highlight important quotations Cite to/Quote from key documents Append any “Silver Bullet” Transcript pages or Exhibits Use the Practice Manual Parts of Brief in order – 4.6(c)(iv) Formatting Guidance and Length

17
BIA decisions When are they issued? Generally a few months after briefing completed, but can be up to a year or more. BIA tries to expedite detained cases. Served on client and attorney by regular mail. How to you keep track of your Board case/get updates? EOIR hotline:(800) 898-7180 Recorded procedural information and clerk’s office: (703) 605-1007

18
What comes next? If you win, can DHS appeal? No If you lose, can you appeal? Yes To Circuit Court, within 30 days of BIA decision File a Petition for Review. Procedure varies depending on rules of Circuit Court. Note: Circuit Court does not always have jurisdiction Some limitations on discretionary opinions by BIA No jurisdiction over aliens removable for committing certain criminal offenses (INA § 242(a)(2)(C)), but Circuit has jurisdiction to determine its own jurisdiction.

About project

Feedback

To ensure the functioning of the site, we use cookies. We share information about your activities on the site with our partners and Google partners: social networks and companies engaged in advertising and web analytics. For more information, see the Privacy Policy and Google Privacy &amp Terms.
Your consent to our cookies if you continue to use this website.